U.S. Bank hired Fisher and Fisher, attorneys at law, to handle the foreclosure of its $140,000 residential mortgage loan to 69-year-old Mattie Sullivan-Moore, taken out in 2001. The law firm specializes in representing mortgage lenders in more than 4,000 foreclosure cases per year.
Working on behalf of U.S. Bank, Fisher and Fisher handled the foreclosure of Sullivan-Moore’s home at 7744 S. Carpenter St. But the proceedings got off to a bad start when the foreclosure papers incorrectly stated the address as 7742 S. Carpenter.
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As a result, Sullivan-Moore never received notice of the foreclosure proceedings before the foreclosure judgment was entered, her home was sold, and she was evicted.
The foreclosure action contained the correct legal description of the property, but incorrectly listed the address as 7742 S. Carpenter, a house owned by Donna Lillybirde.
Not surprisingly, a process server was unable to personally find and serve Sullivan-Moore at that address because she lived next door, although the tenant did not know her.
Fisher and Fisher then obtained court permission to serve Sullivan-Moore with notice of the foreclosure sale by publication in the local legal newspaper, again listing the incorrect 7742 S. Carpenter address.
Attorneys Fisher and Fisher then arranged a default order, a judgment of foreclosure, and held the foreclosure sale. U.S. Bank purchased the house at the sale.
Shortly after the foreclosure sale, a Fisher and Fisher attorney discovered the error after receiving phone calls from the tenant and the owner of 7742 S. Carpenter. But instead of checking if Sullivan-Moore received notice of the foreclosure sale, the attorneys sought a court order for possession and a motion to correct a “scrivener’s error.”
Although she never received notice of the foreclosure sale, Sullivan-Moore was evicted from 7744 S. Carpenter. But she moved back into her house the next day.
Fisher and Fisher then sought re-eviction. At that hearing, associate attorney Michael Fisher appeared. The court ruled Sullivan-Moore had never been properly served, the error could not be corrected by a “scrivener’s error” motion, and the foreclosure sale must be voided.
A month later, the court issued an order requiring U.S. Bank and attorneys Fisher and Fisher to show cause why they should not be sanctioned for failure to review the foreclosure complaint, which should have listed Sullivan-Moore’s correct address.
The court ordered a sanction penalty that all Fisher and Fisher attorneys, including new hires, complete a 16-hour civil procedure course on subject-matter jurisdiction. But the Fisher and Fisher attorneys appealed, arguing their sanction is unreasonable.
If you were the judge would you rule the Fisher and Fisher attorneys must complete the 16-hour civil procedure course as their sanction penalty for the wrongful foreclosure and eviction of Sullivan-Moore?
The judge said yes!
“The discovery of the mistaken address should have prompted a reasonably competent second-year law student to move to vacate the sale and judgment, and then start over with proper service of process,” the judge began. Instead, Fisher and Fisher moved to correct a “scrivener’s error,” representing to the court that the correction would not prejudice any of the parties, he continued.
“Fisher and Fisher’s plea of ignorance is unavailing,” he commented, “and as we have repeatedly observed, an empty head but a pure heart is no defense.” “Neither the firm’s caseload nor its practice of shuffling cases from one attorney to another within the firm excuses the type of negligent action that caused Sullivan-Moore to be evicted,” the judge commented.
“Fisher and Fisher acknowledges that its mistake regarding the address came to the attention of at least two of its attorneys over two months before Sullivan-Moore was evicted,” the judge emphasized. But in the interim, Fisher and Fisher sought and received a court order approving the sale and filed the motion to correct the so-called scrivener’s error, the judge added.
A court has wide latitude to determine what penalty sanctions should be imposed on attorneys for misconduct; non-monetary sanctions may be imposed to deter repetition of the offending conduct, the judge ruled. Therefore, the current and future attorneys of Fisher and Fisher must complete a 16-hour course in civil procedure as sanction for their unacceptable conduct in this case, the judge concluded.
Based on the 2005 U.S. Court of Appeals decision in U.S. Bank National Association v. Sullivan-Moore, 406 Fed.3d 465.
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